126 Misc. 728 | N.Y. Sur. Ct. | 1925
On this accounting a construction of the will of testator becomes necessary. The 20th paragraph thereof reads as follows:
“ I give and bequeath to my executors and executrix hereinafter named preferred stock of Henry Glass & Co. a corporation, of the par value of Thirty-Three Thousand and Three Hundred ($33,300)
The testator’s widow, who was entitled to half the income of ■ this trust, died on November 27, 1923. The other life tenant, Herbert I. Glass (described as Israel Herbert Glass in the will), reached the age of twenty-five on November 6, 1924. The question involved here concerns the proper distribution of one-half of the income of the trust fund earned during the period from the death of the widow to Herbert’s attainment of twenty-five years of age. This income amounts to the sum of $9,537.90. This sum is claimed by Herbert I. Glass individually as the person presumptively entitled to the next eventual estate. The two sisters of Herbert I. Glass claim that this income should be distributed to the three children of testator, who are his only next of kin.
In my opinion this amount is properly payable to Herbert I. Glass. It was income not validly disposed of under the will, as the right of the widow to receive the income ceased upon her death. (Matter of Ossman v. Von Roemer, 221 N. Y. 381; Delafield v. Shipman, 103 id. 463.) It is payable, therefore, to the person presumptively entitled to the next eventual estate. (Real Prop. Law, § 63, as amd. by Laws of 1916, chap. 364.)
Tax costs and settle decree on notice accordingly.